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VRANESH AND RAISCH, LLP ATTORNEYS AT LAW 1720 14th Street, Suite 200 P.O. Box 871 Boulder, Colorado 80306-0871 Telephone 303/443-6151 Telecopier 303/443-9586 Jerry W. Raisch John R. Henderson Michael D. Shimmin Eugene J. Riordan Paul J. Zilis Lisa Ledet Stuart B. Corbridge Amy F. Stengel George Vranesh (1926-1997) January 28, 2004 VIA E-MAIL ONLY e-mail: paj@llolaw.com Upper Black Squirrel Creek Ground Water Management District c/o P. Andrew Jones, Esq. Lind, Lawrence & Ottenhoff, LLP Re: Priority Call on Junior Water Rights by Schubert Ranches, Inc. Dear Andy: Please regard this letter as a formal request by Schubert Ranches, Inc. (“Schubert”) to have the Upper Black Squirrel Creek Ground Water Management District curtail pumping from certain upstream, junior wells. This request is made pursuant to C.R.S. § 37-90-111(1)(a), as interpreted and applied by the Colorado Supreme Court in the case of Upper Black Squirrel Creek Ground Water Management District v. Goss, 993 P.2d 1177 (Colo. 2000). Attached to this letter is a written report prepared by TZA Water Engineers that specifically identifies the wells and water rights owned by Schubert that this priority call is intended to benefit, the wells and water rights sought to be curtailed, and the factual bases for the curtailment request. This includes a ground water model analysis documenting the magnitude and timeframe within which both the impacts of continued pumping, and the benefits from curtailment, are likely to occur at the Schubert wells. The TZA report also documents why the curtailment is necessary, that continued operation of the upstream junior wells will cause unreasonable injury to the Schubert water rights, and that there are no reasonable alternatives available. Therefore, we believe that this curtailment request meets all of the factual and legal requirements set forth in both statute and case law. Likewise, although the District has not yet adopted a rule dealing with priority enforcement, we have tried to comply with all of the requirements set forth in the draft rule that you provided us. If you believe there are any factual or legal deficiencies in this curtailment request, we ask that you notify us immediately and specifically identify any such deficiencies. Please regard this as a request for the District to enter a summary order prohibiting any further withdrawal of water from the upstream, junior wells identified in the TZA report. We would like to attend the next District Board meeting to explain and summarize this work and answer questions. We understand that it may be February 10, 2004 at 7:00 p.m. in Calhan. We will plan to be there unless you tell us differently. In the event that the District declines to enter a summary curtailment order, please regard this as a written request for an adjudicatory hearing before the District pursuant to C.R.S. § 37-90-131(1)(c). The basis for the hearing request is that, if the District does not enter a summary curtailment order against these junior wells, Schubert will suffer immediate and unreasonable injury to its senior water rights during the upcoming irrigation season and into the future. We request that the District Board consider this request at its next meeting, and immediately notify us about whether a summary curtailment order will be entered. If not, we need to begin the procedures necessary to schedule and conduct the hearing within 180 days, as required by C.R.S. § 37-90-131(1)(c). In order to facilitate the District’s review of this request, concurrently with my e-mailing you this letter and attachments, TZA is sending to the District’s consultant, Forrest Leaf, a copy of the TZA report, along with a copy of the model, including the input and output files on CD. I am also sending a copy of this letter and its attachment to the Ground Water Commission staff. If you have any questions at this time about either the process or the substance of this request, please let me know. Thank you for your consideration. Sincerely, VRANESH AND RAISCH, LLP By: Mike Shimmin Michael D. Shimmin E-mail: mds@vrlaw.com MDS:k Attachment cc: Hal D. Simpson, P.E., State Engineer (w/ attachment) (via e-mail) William H. Fronczak, P.E., Supervisor (w/ attachment) (via e-mail Suzanne M. Sellers, P.E. (w/ attachment) (via e-mail) George and Ted Schubert (w/ attachment) (via first class mail) Bruce E. Kroeker, P.E. (w/o attachment) (via e-mail) Memorandum Upcoming Commission Meeting Page 2 FRED A. HEFLEY, CHAIRMAN, Walsh; JON B. BROWNELL, VICE-CHAIRMAN, Hooper; EUGENE A. BAUERLE, Julesburg; ANNE J. CASTLE, Denver; DENNIS W. CORYELL, Burlington; MICHAEL GROSS, Silt; RICHARD F. HUWA, Keenesburg; F. W. (BILL) KERKSIEK, Strasburg; ERNEST L. MIKITA, Calhan EARNEST L. MIKITA, CHAIRMAN, Calhan; C. MAX SMITH, VICE-CHAIRMAN, Walsh; EUGENE A. BAUERLE, Julesburg; LARRY W. CLEVER, Grand Junction; DENNIS W. CORYELL, Burlington; RALPH G. CURTIS, Alamosa; RICHARD F. HUWA, Keenesburg; FRANK P. JAEGER, Elizabeth; ROBERT R. LOOSE, Wiggins Memorandum Upcoming Commission Meeting Page 2 FRED A. HEFLEY, CHAIRMAN, Walsh; JON B. BROWNELL, VICE-CHAIRMAN, Hooper; EUGENE A. BAUERLE, Julesburg; ANNE J. CASTLE, Denver; DENNIS W. CORYELL, Burlington; MICHAEL GROSS, Silt; RICHARD F. HUWA, Keenesburg; F. W. (BILL) KERKSIEK, Strasburg; ERNEST L. MIKITA, Calhan EARNEST L. MIKITA, CHAIRMAN, Calhan; C. MAX SMITH, VICE-CHAIRMAN, Walsh; EUGENE A. BAUERLE, Julesburg; LARRY W. CLEVER, Grand Junction; DENNIS W. CORYELL, Burlington; RALPH G. CURTIS, Alamosa; RICHARD F. HUWA, Keenesburg; FRANK P. JAEGER, Elizabeth; ROBERT R. LOOSE, Wiggins Variance by Steve and Ronda Hayes Page 2 Memorandum Upcoming Commission Meeting Page 2 FRED A. HEFLEY, CHAIRMAN, Walsh; JON B. BROWNELL, VICE-CHAIRMAN, Hooper; EUGENE A. BAUERLE, Julesburg; ANNE J. CASTLE, Denver; DENNIS W. CORYELL, Burlington; MICHAEL GROSS, Silt; RICHARD F. HUWA, Keenesburg; F. W. (BILL) KERKSIEK, Strasburg; ERNEST L. MIKITA, Calhan S:\DesBasPrograms\GWC Meetings\Feb 2004\GWCFeb04.doc S:\DesBasPrograms\GWC Meetings\Feb 2004\GWCFeb04.doc Memorandum to Hal Simpson Page 21 Quarterly Commission Staff Activity Report February 18, 2004 S:\DesBasPrograms\GWC Meetings\Feb 2004\GWCFeb04.doc EARNEST L. MIKITA, CHAIRMAN, Calhan; C. MAX SMITH, VICE-CHAIRMAN, Walsh; EUGENE A. BAUERLE, Julesburg; LARRY W. CLEVER, Grand Junction; DENNIS W. CORYELL, Burlington; RALPH G. CURTIS, Alamosa; RICHARD F. HUWA, Keenesburg; FRANK P. JAEGER, Elizabeth; ROBERT R. LOOSE, Wiggins Memorandum to Hal Simpson Page 22 Quarterly Commission Staff Activity Report February 18, 2004 S:\DesBasPrograms\GWC Meetings\Feb 2004\GWCFeb04.doc ERNEST L. MIKITA, CHAIRMAN, Calhan; ANNE J. CASTLE, VICE-CHAIRMAN, Denver; JON B. BROWNELL, Hooper; EUGENE A. BAUERLE, Julesburg; DENNIS W. CORYELL, Burlington; ROBERT R. LOOSE, Wiggins; LARRY CLEAVER, Grand Junction; RICHARD F. HUWA, Keenesburg; CHARLES “MAX” SMITH, Walsh S:\DesBasPrograms\GWC Meetings\Feb 2004\GWCFeb04.doc S:\DesBasPrograms\GWC Meetings\Feb 2004\GWCFeb04.doc February 18, 2004 Page 40 CONFIDENTIALITY NOTICE This facsimile transmission contains information belonging to the sender which is confidential and legally privileged. This information is only for the use of the individual or entity to whom it was sent as indicated above. If you are not the intended recipient, you are hereby notified that any disclosure, copying or distribution of this transmission, or any action taken in reliance on the information within this transmission is strictly prohibited. If you have received this transmission in error, please call us collect to arrange for its return to us at our expense. Thank you. S:\DesBasPrograms\GWC Meetings\Feb 2004\GWCFeb04.doc GWCpacket.pdf GWdoc.docManagement and Control of Designated Ground Water, 2 CCR 410-1 Rulemaking Hearing This rulemaking hearing concerns rules which are being promulgated in order to allow additional appropriations for existing wells completed in multiple aquifers in designated basins, where ground water is available for appropriation. The proposed rule changes are attached to this document, along with the basis and purpose of the rules. These rules were promulgated pursuant to C.R.S. § 37-90-111(1)(h), which grants the Ground Water Commission the authority to adopt rules as necessary to carry out the provisions of the Ground Water Management Act, and the rulemaking provisions of the Administrative Procedure Act, C.R.S. § 24-4-101, et. seq. (the “APA”). The rules were submitted to the Secretary of State on December 19, 2003; were published in the January edition of the Colorado Register; and were submitted to the Department of Regulatory Agencies (“DORA”) in accordance with the APA. On January 23, 2004, DORA personnel reviewed the rules and determined that the proposed changes met DORA requirements. Those persons wishing to obtain party status in order to testify or comment on the rules at the February 24, 2004 hearing were required to submit a Notice of Party Status on or before January 30, 2004. No such notices were received. Comments and/or objections to the proposed rules were also due on January 30, 2004, and no comments or objections were received. HayesVariance memoRev4.doc STATE OF COLORADO GROUND WATER COMMISSION Division of Water Resources Department of Natural Resources 1313 Sherman Street, Room 818 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 Bill Owens Governor Russell George Executive Director, DNR Hal D. Simpson, P.E. Executive Director